Indian rights, religious freedom, equality claims and strict criminal penalties have gotten into a tangled mat [Marcia Zug, Prawfsblawg] Earlier on eagle feather law here, here, and here.
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Posts tagged as:
Indian tribes
Missed from earlier this year: in the fall of 2007, following extensive litigation, the government of Canada began issuing payments to persons of Indian ancestry who had attended an officially promoted network of residential schools where abuse was common and whose aim of assimilating students into broader Canadian life was later assailed as calculated to suppress native culture. While the payments brought benefit to many recipients, among others they seem to have led to new cycles of dysfunction, family strife and substance abuse. [Jack Branswell and Ken Meaney, "Native suicides linked to compensation", Canwest/National Post, Jan. 26 via Western Standard]
- “Sioux split on suit seeking money for Black Hills” [Associated Press]
- More on nomination of Mothers Against Drunk Driving CEO to head highway safety agency [Balko, see also comments on earlier post]
- Push by advocates in Congress to extend shakedown-enabling Community Reinvestment Act to all financial institutions [Victoria McGrane, Politico] And some numbers from Bank of America raise doubts about those oft-heard “CRA default rates lower than regular default rates” assertions [Weisenthal, Business Insider]
- Illinois attorney general Madigan to Craigslist: purge vice ads or I’ll see you in court [L.A. Times]
- Here and there, acknowledgments in the press of the damaging effects of laws entrenching auto dealers against termination [L.A. Times via Craig Newmark]
- How many people get arrested for “contempt of cop”? [Coyote Blog] Blogosphere has helped spread awareness of police-abuse issues [Greenfield]
- Virginia Postrel: I told you so on that light bulb ban story [earlier]
- U.K. law reform panel: “charlatan” and “biased” expert witnesses put defendants at risk of wrongful conviction [Times Online]
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This Saturday at the Reagan Library in Simi Valley, California, near L.A., the Federalist Society will be holding its all-day third annual Western Conference. This time the theme is the law of American Indians and Indian tribes, a topic of immense intellectual interest and also of much practical importance to non-Indians through much of the rural West, in localities nationwide where casino development rouses controversy, and even, as I have pointed out in a couple of articles, to complete bystanders in the East who have found their land title suddenly thrown into doubt by the revival of antiquated tribal land claims. I’m going to be a participant on one of the panels, which will feature a distinguished assemblage of law professors and others; another reason for my interest in the topic is that a chapter on Indian law figures in my book in progress on the influence of law schools on American law. More details here.
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The legal humor site has nominated its favorite stories of 2008. Among them:
- Judge denies Indian tribal immunity to supposed “Wampanoag Nation” that turns out to have been “founded in an Arby’s restaurant in Provo in 2003“;
- Colorado inmate hurt in attempted breakout claims state failed to make jail “reasonably escape-proof” (earlier);
- Australian parliament so rowdy that lawmakers asked to submit to periodic breath tests;
- EU issues noise protection rules setting decibel limit on playing of bagpipes (earlier);
- German lawmakers debate giving babies the ballot by reducing voting age to zero.
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- Lawyers’ contingency fee is temptation to ethical corner-cutting in consumer debt collection, too [Miami Daily Business Review, Popehat; Orlando's Palmer Reifler & Associates, mass mailing of demand letters to accused shoplifters]
- Discussion continues on loser-pays with me and many others at NewTalk, and note comment from Ontario lawyer [through today]
- Age bias suit by Hollywood writers gains traction. Next, actors? [Ink Slingers via Class Action Blawg weekly review]
- Class action against Quebec lottery on behalf of problem gamblers finally set for trial [CP/Yahoo, Lee Distad via Class Action Blawg, earlier]
- Should we and other commentators avoid mentioning litigants’ real names so as not to intrude on their Google legacy? [comments at Ron Miller/Md. Injury]
- California lawmakers OK feel-good “Donda West Law” but it won’t do much to keep impulsive clients from rushing into plastic surgery [GruntDoc, Cameron Turner/EURWeb, Truth in Cosmetic Surgery Blog]
- Probably not a swift career move for lawyer to tell bar disciplinary panel “Go to hell.” [ABA Journal]
- Class action forces HUD to allocate more to some Indian recipients, so it cuts other programs, bad news for North Carolina’s Lumbee tribe [Fayetteville, N.C. Observer courtesy US Chamber]
- Environmental authorities won’t press charges against man who shot protected rattlesnake that had just attacked and bitten him [eight years ago on Overlawyered]
- Two topics of recent interest on the site — cremation and service monkeys — together in one post [The Urn Garden]
- Please don’t tell us an aggressive stance by music copyright holders is going to kill Pandora radio, one of the bright stars of the Internet [WaPo, more]
- “Citizens in Chains: The High Cost of Prisoner Lawsuits to California Taxpayers” [CALA, PDF]
- Navajo plaintiffs: spraying artificial snow on our sacred mountain is spiritually injurious [Volokh]
- Remember those anti-poverty non-profit groups that were going to represent the culmination of John Edwards’ life work, aside from running for you-know-what? Him neither [Silverstein, Harper's via Folo]
- Toxic tort class action in Saudi Arabia proves unsuccessful [Arab News]
- Fending off patent trolls has been expensive for high-tech Massachusetts firm Cognex [NLJ]
- Arizona law professor’s creative denials in paternity suit have furnished faculty-lounge chuckles for years [Caron/TaxProf, Jack J. Rappeport]
- New at Point of Law: big ruckus over proposal to compel accounting projections of lawsuit exposure; guestblogger Peggy Little on Connecticut vs. Countrywide, the ABA in judicial selection and more; cy pres litigation slush funds assailed as constitutionally dubious; Trial Lawyers Inc. series tackles the state of Ohio; MBIA mulls suing hedge fund that’s sniped at its stock; more on med-mal “loss of a chance”; and much more.
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* New Jersey: “A federal judge in Camden last week dismissed a lawsuit filed by a band of American Indians seeking to reclaim land they said the state sold out from under them more than 200 years ago. The Unalachtigo band of the Nanticoke-Lenni Lenape Nation demanded the return of 3,044 acres of the former Brotherton Reservation, which sits mostly in Shamong Township in Burlington County.” [Philadelphia Inquirer; Camden Courier-Post/Red Lake Net News, 2006 (expensive law firm of Reed Smith was representing tribal band, which was angling for casino rights)].
* A new C$550 billion land claim launched by the Whitefish Lake tribe (or “First Nation”, to adopt progressive Canadian terminology) includes the entire city of Sudbury, Ontario [Timmins Press, Sudbury Star]
* Second Circuit panel due this week to hear appeal on upstate New York Oneida claim, in which ejectment of current landowners is apparently (for the moment) off table as option [Rome [N.Y.] Sentinel; earlier on Indian land claim litigation].
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Why does the idea of cultural property have so many advocates? “It seems to establish a bulwark against the plunder of antiquities.” And yet how quickly it’s turned into a way of looting premodern artifacts from Western owners whose claim of title is stronger than that of foreign governments or indigenous/Indian tribes. “But if cultural property really did exist, the Enlightenment museum would be an example of it: an institution that evolved, almost uniquely, out of Western civilization. And the cultural property movement could be seen as a persistent attempt to undermine it. And take illicit possession.” (Edward Rothstein, “Antiquities, the World Is Your Homeland”, New York Times, May 27).
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- Fear of “retribution” and “legal action” among reasons docs don’t report hazardous colleagues and conditions [WaPo on new Annals of Internal Medicine study]
- Judge rips Milberg for high Chiron fee proposal, questions Skadden’s conflict [The Recorder]
- Felony murder rule is an American exception with results that can be hard to defend [Liptak, NYT]
- UK: “Man broke girlfriend’s leg in damages fraud” [Times Online]
- Often driven by defensive medicine, CAT scans may pose their own risks to patients who undergo them [Newsday on NEJM study]
- Commentator is glad post offices are lawyering up their Operation Santa gift programs [McDonough, CalLaw LegalPad; earlier; possibly related]
- Quebec judge nixes suit by Concordia University mass murderer against former colleagues [Canadian Press]
- Update on Kennewick man and Indian-remains legislation [WashTimes; earlier]
- Magic of compound interest? Uncollected 1977 award for victim of Evel Knievel attack said to have mounted by now to $100 million [AP/Yahoo]
- School discipline now a heavily lawyer-driven affair [Charleston Post & Courier courtesy Common Good]
- Complaint: Cleveland housing authority should have done more renovations to accommodate extremely obese tenant [four years ago on Overlawyered]
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Two groups claiming to be American Indian tribes are offering membership for $50. The AP report (via Hit & Run) suggests that the memberships are being sold for purposes of evading immigration laws, but no one explores the affirmative action possibilities, though Dr. Seuss anticipated such a scheme in 1961. Alas, the two groups are not federally recognized Indian tribes, so the deal is just a scam.
- Divorcing Brooklyn couple has put up sheetrock wall dividing house into his and hers [L.A. Times, AP/Newsday]
- Boston Herald appeals $2 million libel award to Judge Ernest Murphy, whom the paper had portrayed as soft on criminals (earlier: Dec. 8 and Dec. 23, 2005) [Globe via Romenesko]
- Updating Jul. 8 story: Georgia man admits he put poison in his kids’ soup in hopes of getting money from Campbell Soup Co. [AP/AccessNorthGeorgia]
- Witness talks back to lawyer at deposition [YouTube via Bainbridge, %&*#)!* language]
- Prominent UK business figure says overprotective schools producing generation of “cotton wool kids” [Telegraph]
- State agents swoop down on Montana antique store and seize roulette wheel from 1880s among other “unlicensed gambling equipment” [AP/The Missoulian]
- “You, gentlemen, are no barristers. You are just two litigators. On Long Island.” [Lat and commenter]
- Some Dutch municipalities exclude dads from town-sponsored kids’ playgroups, so as not to offend devout Muslim moms [Crooked Timber]
- As mayor, Rudy Giuliani didn’t hesitate to stand up to the greens when he thought they were wrong [Berlau @ CEI]
- Australia: funeral homes, fearing back injury claims, now discouraging the tradition of family members and friends being pallbearers [Sydney Morning Herald]
- Asserting 200-year-old defect in title, Philly’s Cozen & O’Connor represents Indian tribe in failed lawsuit laying claim to land under Binney & Smith Crayola factory [three years ago on Overlawyered]
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In two separate cases, federal judges have rejected high-profile but long-shot claims by Indian tribes asserting ownership of land tracts in the Northeast. U.S. District Court Judge Thomas C. Platt said the Shinnecock tribe of Long Island, New York (see Jun. 13, Jun. 19 and Jun. 27, 2005), had forfeited its potential claim on 3,600 acres of high-value land in the Hamptons by waiting more than 140 years to assert possession. (John Moreno Gonzales, “Ruling aside, tribe plans to build casino”, Newsday, Dec. 5; “Judge cites passage of time in Shinnecock land claim”, Indianz.com, Dec. 6; ruling in PDF format courtesy Indianz.com). And in New Haven, U.S. District Court Judge Janet Bond Arterton brought homeowners’ ordeal nearer an end Nov. 29 by ruling against the federally unrecognized group that calls itself the Golden Hill Paugussetts, which has been asserting land claims in various Connecticut towns for 14 years. (Gale Courey Toensing, “Golden Hill Paugussetts will appeal rejected land claims”, Indian Country Today, Dec. 11).
Under California law, if you’re digging on your property and you find prehistoric remains, you must contact the state’s Native American Heritage Commission.
The commission then assigns a person known as the “most-likely descendant” to consult with the landowner. But there’s sometimes tenuous or no ancestral ties between the “descendant” and the uncovered bodies, scientists and American Indians said. … Praetzellis and other researchers said it is more important for American Indians to be involved in the moving of ancient remains than to force them to prove a genetic link after being left out entirely for decades.“They just have to say, ‘Yeah, I feel culturally connected to those remains,’” said Jeff Fentress, a San Francisco State anthropologist. “It is really up to that person to determine how to handle that burial.”
Landowners often pay consulting fees to persons on the designated “descendant” lists, and some persons of American Indian descent say they would like to be on the lists but were left off because of politics. Some Indian activists are also upset that the state law does not give the “descendant” the right to block development. (Matt Krupnick, “Ancient remains causing problems”, Contra Costa Times, Oct. 18). Earlier: Jul. 16, 2005, etc.
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Think twice about trying to grow your own from nursery stock: If the patent held by biotech firm Syngenta doesn’t get you, the indigenous-flora royalty supposedly owed to the government of Tanzania just might (Antony Barnett, “The new piracy: how West ’steals’ Africa’s plants”, The Observer (UK), Aug. 27).
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The only thing worse than a frivolous lawsuit is a frivolous repeat of a frivolous lawsuit:
A group of Native Americans filed a new legal challenge yesterday to trademarks for the name and logo of the Washington Redskins, saying the team’s name is a racial slur that should be changed.A petition filed at the U.S. Patent and Trademark Office by six Native Americans represents a second chance for Indians to challenge the football franchise’s name. The team prevailed in an earlier fight when a U.S. District Court judge ruled that the plaintiffs waited too long under trademark law to object. This time, the complaint was filed with a new set of plaintiffs.
…
“The term ‘redskin’ was and is a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging and racist designation for a Native American person,” the complaint says.
Whatever thesaurus the plaintiffs are using, I want one. I’m surprised the complaint didn’t add “just plain icky.”
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“Lawyers who have been representing survivors of Canada’s residential school system are expected to get the biggest payment ever recorded for a Canadian class action case.” The federal government will pay about C$80 million in fees, of which half will go to the Regina-based Merchant Law Group and half to a consortium of other lawyers. (”Lawyers set to be paid $80M in school abuse deal”, CTV, May 8; “School abuse deal includes $80M for lawyers”, CBC, May 8). The fees are part of a $2 billion deal intended to resolve portions of the litigation over the federally-sponsored, church-run Indian schools, which were originally accused of permitting the infliction of physical and sexual abuse on some of their students; later the litigation expanded to include charges of “cultural deprivation” and alienation on behalf of thousands of Native Americans who attended the schools, which were geared toward assimilation into Canadian culture (FAQ from CBC on settlement). More: Aug. 23-24, 2000.
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As regular readers of this space know (Apr. 14, etc.), I’ve long taken an interest in the injustices that have been visited on innocent landowners in New York, Connecticut and many other states by lawsuits seeking to revive long-defunct Indian land claims. I’ve got a guest column in the latest Forbes (”On My Mind”, May 8, reg) briefly summing up a few of the things wrong with this litigation. A sample:
Until lately Anglo-American law sought a careful balance between the goal of restoring wrongfully taken property to its rightful owners, on the one hand, and the equally valid goal of securing everyone’s property against the danger that a claimant will show up some day to assert a speculative defect in title. Hence doctrines aimed at preventing old disputes from staying alive indefinitely: statutes of limitation, adverse possession, “acquiescence” in unchallenged political boundaries.
In a series of rulings over the past 30 years, however, the U.S. Supreme Court has decided that Indians are wholly different from other land claimants. Law professors have cheered: What cause is more romantic than that of dispossessed Indians? (Somehow owners of small farms in upstate New York never seem to merit the underdog label.) The rulings also constitute a stunning victory for a scrappy cadre of Legal Services lawyers; a few of these antiestablishment types have found themselves, over the arc of a career, gradually transmuted through their tribal connections into highly paid casino promoters, in a transformation worthy of a Balzac or Stendhal novel.
(cross-posted at Point of Law)
